Braintree police resist return of marijuana seized from Falmouth man

Wednesday

Aug 27, 2014 at 6:00 AMAug 27, 2014 at 8:48 AM

By Christine LegereCape Cod Times

A Falmouth man with a medical marijuana certificate is battling the Braintree Police Department to get back 1.5 ounces of marijuana and $1,200 in cash that officers confiscated after he was arrested in April 2013.

Derick Eaton, 31, was arrested in the South Shore Plaza parking lot and charged with marijuana and hash possession and distribution despite his certificate from Cannamed Doctors in Framingham that says he can use marijuana to address anxiety and knee and back pain.

Police did not take his condition seriously, he said in an interview last week. “They laughed and said, ‘There’s no such thing as medical marijuana,’” he recalled.

In early August, after several court appearances, Quincy District Judge John Stapleton dismissed the charges against Eaton and two other men arrested at the same time who also had medical marijuana certificates.

Eaton then went to the Braintree police station with a judge’s order for the return of his money and medical marijuana. Police initially put him off, saying the property officer was on vacation, he said. Ultimately they simply refused his request.

Braintree Deputy Police Chief Wayne Foster said his department sought guidance from the office of Norfolk County District Attorney Michael Morrissey.

“We were kind of confused when he came in with a judge’s order,” Foster said Thursday. “We asked the DA. The district attorney’s office said there was no way we were going to give drugs back to a drug dealer. And police took the money as proceeds from drug sales.”

Eaton says the police can’t ignore a court order. “What the whole thing comes down to is the judge ordered it and they are disobeying the judge,” Eaton said. “I’m not going to let this go no matter what I have to do to get back my medicine. It’s a symbolic thing.”

Foster said Friday he’s been told the Norfolk County district attorney’s office may file a motion to reconsider the judge’s order and have it overturned.

According to the Braintree police report, Eaton’s case started when officers in unmarked cruisers spotted a man getting into a car with two others and proceeding to the outer edge of the South Shore Mall parking lot, a known spot for drug deals. When police approached and searched the car, they found 1 ounce of marijuana, separated into three baggies, along with two more baggies in the trunk and a small amount of hash — a more concentrated form of marijuana made from the resin of the cannabis plant.

The officers also found $420 in the car’s cup holder and another $796 in Eaton’s wallet.

Eaton said this week that he was not selling drugs but meeting with a man certified to use medical marijuana to talk to him about being his caregiver. That status would allow him to provide marijuana to a single certificate holder.

“We were about to go into The Cheesecake Factory to do the paperwork,” Eaton said this week.

Eaton said he has served time in the past for drug-related convictions. He was indicted and convicted for drug trafficking and was in jail for two years. But he said Thursday that those were based on false evidence related to the Annie Dookhan drug-lab scandal. He was released from jail while the cases are pending but said he hopes to have the convictions expunged from his record. Eaton said he has turned his life around, has his own construction and fence business and is raising two children.

He has met with the Boston law firm of Hedges & Tumposky.

“We are investigating a civil complaint as well as what action to take to get his property back,” said attorney Michael Tumposky.

Boston attorney Valerio Romano, who has handled several cases for medical marijuana patients charged with possession, said the charges are ultimately dismissed but it can take several months. Police are resisting the legalization of the drug for medical purposes, Romano said. He called Eaton’s situation “classic.”

Romano said he is representing another certificate holder with dismissed charges who is attempting to get back the medical marijuana from the police department that made the arrest. “There is a judge’s order for the return of the property,” Romano said. “They keep saying the property officer is out of town, but so far they haven’t refused.”

Massachusetts voters overwhelmingly approved a referendum legalizing use of marijuana for medicinal purposes in November 2012. The law went into effect in January 2013. Meanwhile, marijuana, no matter what its purpose, remains illegal at the federal level.

The state Department of Public Health had initially predicted dispensaries would be up and running by this summer, but that process is lagging significantly. The process for creating a registry of certified medical marijuana users is also lagging.

Wayne Sampson, executive director of the Massachusetts Association of Police Chiefs, said police are frustrated by the lack of promised documentation for certified medical marijuana users. It is difficult to know whether the doctor-issued papers being shown to officers by certificate holders are real, he said. “The state needs to issue registration cards so we can have standardized documents, and we need access to an online database 24 hours a day,” Sampson said.

Barnstable County District Attorney Michael O’Keefe, speaking as a representative of the Massachusetts District Attorneys Association, predicts difficulties with the marijuana law will continue.

“This is a very difficult scenario statewide, and it’s what results when laws are foisted on us through the ballot,” O’Keefe said. “It presents laws as faits accomplis that are not very well crafted. There are all kinds of anomalies with laws in place but not procedures.”

Christine Legere may be reached at clegere@capecodonline.com or follow her on Twitter: @chrislegereCCT.